City threatened with injunction to block landfill

As the city of Greensboro moves forward to vet three private companies before making a final selection in June to privately operate the White Street Landfill, a question mark remains about possible legal hurdles in about four years when the city would have to obtain additional permitting to expand the landfill.

Chris Brook, a staff attorney with the Southern Coalition for Social Justice in Durham, warned Greensboro City Attorney J. Rita Danish in a letter today that North Carolina statute requires the city to consider alternative sites, review socioeconomic data and hold a public hearing before it obtains a permit for additional phases of the White Street Landfill, after the permitted portion fills to capacity after an estimated four years. The Request For Proposals issued by the city specifies that the duration of a contract to operate the landfill would last “a minimum term of 15 years and a maximum term of 30 years.”

Brook writes that “the city of Greensboro has failed to comply with North Carolina General Statute 160A-325 in its efforts to expand the White Street Landfill. If Greensboro does not articulate a plan for complying with this statutory obligation by May 16, 20011, then [Citizens for Economic and Environmental Justice] and SCSJ will seek to enjoin the city from moving forward with a 15-30-year contract to expand the White Street Landfill in Guilford County Superior Court.”

“There is no permit for Phase IV or Phase V, both of which are within a mile of Phase III,” said Chris Brook, a staff attorney at the Southern Coalition for Social Justice who is providing free representation to landfill opponents. “If the plan was just to reopen Phase III, then this would not apply, but as has become clear in recent city council meetings, the plan is a 15-year contract, and after Year 4, they’ll need Phase 4 and Phase 5 because Phase 3 will have reached capacity, and Phase 4 and Phase 5 qualify as a new sanitary landfill under the statute.

“They have not considered alternative sanitary sites, they have not compiled socioeconomic data for phases 4 and 5, and they have not held a public hearing,” Brook added. “Three pitches down the middle, and they’ve not swung at any of them.”

Having been notified on Tuesday about the Southern Coalition for Social Justice’s concerns on Tuesday, Danish said recently that her office is reviewing the matter.

“First, is it applicable?” Danish asked. “Secondly, is it applicable currently or is it applicable in the future?”

Danish noted that a contract has not been drawn up at this point, and she could not comment on how the city might contractually handle a contingency in which the landfill was not legally allowed to operate.

At-large Councilman Robbie Perkins, who voted against reopening the landfill, said he is concerned about the landfill’s legal liability. He has proposed that staff prepare a cost estimate for the city to operate the landfill, so that Greensboro is not locked into a 15-year contract that doesn’t allow for flexibility if permits to expand are not approved or if the city wants to pursue an alternative such as shipping trash to a proposed regional landfill in Randolph County.

“If the city of Greensboro can’t deliver the permitting then if I’m a private contractor operating the landfill I’m going to have to have some kind of penalty clause if I’m not going to be able to use the landfill for 15 years,” Perkins said. “I’m going to be looking to recover my costs. That’s just something you do as a prudent business person.”

Phil Carter, governmental affairs director for Waste Industries, said the city shouldn’t sweat the permitting question. Waste Industries is one of three companies contending for a contract to operate the landfill.

“There would be some very simple language in [the contract] based on a mutual agreement between the city and the contractor,” he said. “If there was something that occurred and didn’t allow you based on state denial of a permit or a lawsuit that took hold, something that wasn’t our fault or wasn’t their fault, it would be simple language to agree to do what you do up to that point. You might want to get some engineering fees back.

“There would be language for both parties to come out of it without a major financial hit,” Carter added. “There’s no guarantees in this business that you’re going to get a permit for anything.”

Carter said he doesn’t think the statute cited by the Southern Coalition for Social Justice applies to the White Street Landfill.

“Any contiguous property is grandfathered in,” he said. “I don’t think that would apply, as it’s not a brand new site. It’s still part of the overall footprint of the facility. I could be wrong.”

Ed Mussler, permitting branch head for the solid waste section of the NC Department of Environment and Natural Resources, said his agency is also reviewing the law to determine if Greensboro would be required to consider alternatives, review socioeconomic data and hold a public hearing before obtaining permits to expand the landfill.

“I believe it’s highly likely that it would apply at that time because anything they do for the next phases is a substantial change and would require new government approval, and you could argue it meets the definition of ‘proposed,’” he said.